Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-06-15
FILE:
9899/CCEYA
CASE NAME:
9899 v. Director, Day Nurseries Act and Child Care and Early Years Act, 2014
An Appeal of a Notice of Proposal to Refuse to Renew A Licence under the Day Nurseries Act and the Child Care and Early Years Act, 2014
Bliss Montessori School/Castle Heights Montessori School Inc. (Ontario Corporation No. 1636489)
Appellant
-and-
Director, Day Nurseries Act and Child Care and Early Years Act, 2014
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant:
Michael Suria, Counsel
For the Respondent:
Chantelle Blom, Counsel
Brookelyn Kirkham, Student-at-law
Heard in Toronto:
April 8, 11 and 12, 2016
REASONS FOR DECISION AND ORDER
On November 9, 2015, the Director under the Day Nurseries Act and the Child Care and Early Years Act, 2014 (the “Director”) issued a Notice of Proposal to refuse to renew the licence (the “NOP”) of Bliss Montessori School/Castle Heights Montessori School Inc. (Ontario Corporation No. 1636489), referred to as “Bliss” in this decision. Rosa Fragomeni, is now the sole shareholder and director of Bliss. The hearing took place on April 8, 11 and 12, 2016. Over the course of the three days, the Tribunal heard from four witnesses. Counsel provided their closing submissions in writing, and these were completed on April 26, 2016.
For the reasons that follow, the Tribunal dismisses the appeal and directs that the Director carry out the Proposal.
BACKGROUND
A daycare is a highly regulated business. There are very good reasons for this, namely to protect the health, safety, development and wellbeing of young children. As became clear through the evidence, there is no question that Ms. Fragomeni, though committed to and passionate about educating young children, was challenged by the volume and extent of the regulatory requirements.
The issues before the Tribunal are whether the non-compliances recorded over a three year period – and there were many – support the conclusion that there are reasonable grounds to believe that Bliss or Ms. Fragomeni is not, and will not, be operated in accordance with the law and with honesty and integrity.
Three witnesses gave evidence for the Respondent: Salpi DiGiandomenico and Mackenzie McLean, both Program Advisors, and the Director, Pat Cosgrove. They recounted, from the Ministry’s perspective, the history of non-compliances and second chances for Bliss from July 2012 to March 2016. A Program Advisor does the licensing inspections at a daycare. These include both renewal inspections and monitoring inspections as required. Inspections are not scheduled with an operator; their visits are unannounced. A Program Advisor also follows up on any serious occurrences at the daycare and complaints from the public. Both Program Advisors stated they had approximately 120 daycare centres in their caseload.
Ms. DiGiandomenico, who was the Program Advisor for Bliss from July 2012 to the summer of 2014, had approximately 10 years’ experience in the role; Ms. McLean, who took over inspections for Bliss as of April 2015, was in the position for about one year at that point. Both women reported to Ms. Cosgrove, who is the Manager of Compliance and Licensing of the Child Care Quality Assurance and Licensing Branch of the Ministry of Education, Barrie Region, and is designated as a Director under the Act. There are about 1,200 licensees in her region.
Regarding the types of licence that may be issued by the Ministry, Ms. Cosgrove explained that a regular licence is a one year “clear” licence. A regular licence with conditions can also be issued. Conditions serve as an additional monitoring tool. A licence with conditions may be for a term of less than one year; the length of the term may be determined by the number of non-compliances which caused a licence with conditions to be issued.
The third type of licence is a provisional licence. This is issued if an operator has been unable to come into compliance within the requisite time frame. If a Program Advisor notes non-compliances on the inspection report, generally the operator is given a maximum of ten days to provide proof of compliance. Provisional licences are granted for a shorter period of time and generally for no longer than six months. A provisional licence is issued on yellow paper and must be posted by the operator at the daycare centre so that parents are made aware that the daycare centre is operating with a provisional licence. A provisional licence impacts any subsidy that the daycare centre might be receiving from a municipality. As part of the service agreement between a municipality and a daycare centre, a “regular” licence is usually required; if there is a provisional licence, the municipality may not allow a daycare to admit new children.
When Ms. Fragomeni became a director at Bliss in September 2012, it was operating with a provisional licence. Ally Niu was the controlling director at that time. Ms. Niu left, fairly abruptly, at the end of November 2012, at which time Ms. Fragomeni assumed control. Prior to this, Ms. Fragomeni had no administrative experience. As she stated in her evidence, she did not know the status of the licence when she took over. She did not know what a provisional licence was, what policies were required to be in place, nor that there would be regular inspections. To say that Ms. Fragomeni did not do her due diligence before assuming control of Bliss would be an understatement. She had a steep learning curve.
One thing that Ms. Fragomeni was also not aware of was that a change in director at the daycare does not alter the type of licence, nor does it “wipe the slate clean.” The daycare’s history with the Ministry follows the licence and a new director is responsible for that.
As became clear through the three days of evidence, the Act requires that a childcare centre maintain many records. These include written policies on fire drills, “serious occurrences”, anaphylactic protocols, behavior management, drinking water safety and playground safety (as well as records that staff have reviewed the various policies), and attendance, health and immunization records and emergency information for each child.
This is by no means an exhaustive list. For a small centre such as Bliss, the extent